FIFTH SECTION
CASE OF SHISHKINA AND OTHERS v. UKRAINE
(Applications nos. 27273/09 and 2 others -
see appended list)
JUDGMENT
STRASBOURG
28 June 2018
This judgment is final but it may be subject to editorial revision.
In the case of Shishkina and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 7 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The applications were communicated to the Ukrainian Government (“the Government”).
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. They also raised other complaints under the provisions of the Convention.
THE LAW
I. JOINDER OF THE APPLICATIONS
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION
6. The applicants complained principally that the length of the criminal proceedings in question had been incompatible with the “reasonable time” requirement and that they had no effective remedy in this connection. They relied on Article 6 § 1 and Article 13 of the Convention, which read as follows:
Article 6 § 1
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
7. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
8. In the leading case of Merit v. Ukraine, (no. 66561/01, 30 March 2004), the Court already found a violation in respect of issues similar to those in the present case.
9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
10. The Court further notes that the applicants did not have at their disposal an effective remedy in respect of these complaints.
11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 and of Article 13 of the Convention.
III. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
A. Article 2 of Protocol No. 4 to the Convention
12. In applications nos. 11927/13 and 25530/13 the applicants submitted another complaint under Article 2 of Protocol No. 4 to the Convention which also raised issues, given the relevant well-established case-law of the Court (see appended table). This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it also discloses a violation of the Convention in the light of its findings in Ivanov v. Ukraine (no. 15007/02, 7 December 2006).
B. Article 6 § 1 of the Convention
13. The applicant in application no. 27273/09 submitted another complaint under Article 6 § 1 of the Convention concerning non-enforcement or delayed enforcement of domestic decisions which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). The Court finds that this part of the application is a follow-up to the Burmych judgment and shall be dealt with in accordance with the procedure envisaged therein (Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al, § 221, 12 October 2017), i.e. struck out and transmitted to the Committee of Ministers of the Council of Europe in order for it to be dealt with in the framework of the general measures of execution of the pilot judgment in the case of Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, 15 October 2009).
IV. REMAINING COMPLAINTS
14. In application no. 11927/13, the applicant raised further complaints under various Articles of the Convention.
15. The Court has examined the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
16. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
17. Regard being had to the documents in its possession and to its case‑law (see, in particular, Bevz v. Ukraine, no. 7307/05, § 52, 18 June 2009), the Court finds it reasonable to award the sums indicated in the appended table.
18. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Decides to strike the part of application no. 27273/09 concerning the non-enforcement or delayed enforcement of domestic decisions out of the Court’s list of cases pursuant to Article 37 § 1 (c) of the Convention and transmit it to the Committee of Ministers of the Council of Europe in order for them to be dealt with in the framework of the general measures of execution of the above-mentioned Ivanov pilot judgment;
3. Declares the complaints concerning the excessive length of criminal proceedings, the lack of any effective remedy in domestic law and the excessive length of the obligation not to abscond admissible, and the remainder of application no. 11927/13 inadmissible;
4. Holds that these complaints disclose a breach of Article 6 § 1 and Article 13 of the Convention concerning the excessive length of criminal proceedings;
5. Holds that there has been a violation of Article 2 of Protocol No. 4 to the Convention as regards the excessive length of the obligation not to abscond;
6. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 28 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv TigerstedtYonko Grozev
Acting Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 6 § 1 and Article 13 of the Convention
(excessive length of criminal proceedings and lack of any effective remedy in domestic law)
No.
Application no.
Date of introduction
Applicant name
Date of birth
Representative name and location
Start of proceedings
End of proceedings
Total length
Levels of jurisdiction
Other complaints under well-established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
27273/09
27/03/2009
Marina Eduardovna Shishkina
28/07/1967
13/02/2004
15/03/2011
7 years, 1 month and 3 days
2 levels of jurisdiction
Art. 6 (1) - non-enforcement or delayed enforcement of domestic decisions:
On 19/01/09 the Kyivskyy District Court of Donest delivered a decision according to which the applicant was to move into a specific apartment in a hostel. The above decision was enforced only after 13/12/2010 (no precise date is indicated). Besides, according to the applicant she was given an apartment other than the one indicated in the above decision.
2,300
11927/13
25/01/2013
Leonid Petrovich Ponomarenko
30/03/1939
Roman Yuryevich Martynovskyy
Kyiv
30/01/2001
31/10/2012
11 years, 9 months and 2 days
2 levels of jurisdiction
Prot. 4 Art. 2 (1) - excessive length of obligation not to abscond; started on 04/09/2001 and was still pending according to the latest available information.
5,500
25530/13
09/04/2013
Vladimir Pavlovich Lepekhin
24/05/1954
Roman Yurevich Martynovskyy
Kyiv
24/07/2003
27/07/2011
8 years and 4 days
2 levels of jurisdiction
Prot. 4 Art. 2 (1) - excessive length of obligation not to abscond; started on 24/07/2003 and was still pending according to the latest available information.
2,700
[1] Plus any tax that may be chargeable to the applicants.
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